Citation Nr: 9829154
Decision Date: 09/29/98 Archive Date: 10/06/98
DOCKET NO. 93-01 081 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to an increased evaluation for gunshot wound
residuals to the left hand, currently evaluated as 20 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. M. Barnard, Counsel
REMAND
The veteran served on active duty from October 1942 to
October 1945.
This appeal arose from a March 1992 rating decision of the
Waco, Texas, Department of Veterans Affairs (VA), Regional
Office (RO), which denied entitlement to an increased
evaluation for gunshot wound residuals involving the left
hand. This decision was confirmed and continued by a rating
action issued in September 1992. A hearing was held in
January 1993 in Waco, Texas before a member of the Board of
Veterans' Appeals (Board). The case was remanded for further
development in December 1994. In April 1996, a rating action
was issued which continued the denial of the requested
benefit. In January 1997, this case was remanded so that
another hearing could be conducted pursuant to the
appellant’s request. Following this hearing, the hearing
officer issued a decision in April 1997, which continued to
deny the request for an increased rating.
The veteran contends, in essence, that his left hand gunshot
wound residuals are more disabling than the current
disability evaluation would suggest. He has asserted that he
suffers from constant pain, loss of strength and motion and
numbness. He stated that it is difficult for him to button a
shirt and to make a fist. Therefore, he believes that an
increased evaluation is justified.
While a further remand of this case it regretted, certain
changes in the law make it unavoidable. Notably, the
regulations pertaining to the evaluation of muscle injuries
were amended, effective July 1997, during the pendency of
this appeal. The RO last evaluated this case in April 1997;
therefore, the RO has not had the opportunity to evaluate the
veteran using the new criteria. According to Bernard v.
Brown, 4 Vet. App. 384 (1993), when the RO addresses the
issue on a basis different from that proposed by the Board,
the Board must consider whether the claimant has had adequate
notice of the need to submit evidence or argument on that
basis. In addition, where a law or regulation changes after
a claim has been filed or reopened but before the
administrative or judicial appeal process has been concluded,
the version most favorable to the appellant generally
applies. Karnas v. Derwinski, 1 Vet. App. 308 (1991).
Moreover, according to DeLuca v. Brown, 8 Vet. App. 202
(1995), the United States Court of Veterans Appeals (Court)
held that in evaluating a service-connected disability
involving a joint rated on limitation of motion, the Board
erred in not adequately considering functional loss due to
pain under 38 C.F.R. § 4.40 and functional loss due to
weakness, fatigability, incoordination or pain on movement of
a joint under 38 C.F.R. § 4.45. The Court in DeLuca held
that Diagnostic Codes pertaining to range of motion do not
subsume 38 C.F.R. §§ 4.40 and 4.45 (1997), and that the rule
against pyramiding set forth in 38 C.F.R. § 4.14 (1997) does
not forbid consideration of a higher rating based on a
greater limitation of motion due to pain on use, including
during flare-ups. The Court remanded the case to the Board
to obtain a medical evaluation that addressed whether pain
significantly limits functional ability during flare-ups or
when the joint is used repeatedly over a period a time. The
Court also held that the examiner should be asked to
determine whether the joint exhibits weakened movement,
excess fatigability or incoordination. If feasible, these
determinations were to be expressed in terms of additional
range of motion loss due to any pain, weakened movement,
excess fatigability or incoordination.
A review of the case reveals that the veteran is currently
assigned a 20 percent disability evaluation for the left
(minor) hand gunshot wound residuals, the maximum amount
payable under the schedular criteria for involvement of two
digits. 38 C.F.R. Part 4, Codes 5219, 5223 (1997). However,
there is no indication that the RO considered submitting this
case to the Undersecretary for Benefits or the Director,
Compensation and Pension Service for consideration of an
extraschedular evaluation under the provisions of 38 C.F.R.
§ 3.321(b)(1) (1997).
The Board finds that, under the regulations governing
compensation, the issue of entitlement to an increased
evaluation for the left hand gunshot wound residuals could
have been referred to the appropriate authorities for
consideration of an extraschedular evaluation. The veteran
has alleged that he is more limited by these residuals than
is contemplated by the schedular codes, particularly by his
complaints of pain.
The Board cannot assign an extraschedular rating in the first
instance, that such benefits must first be considered by the
Undersecretary for Benefits or the Director, Compensation and
Pension Service. Floyd v. Brown, 9 Vet. App. 88, 94 (1996).
Therefore, it is found that a remand is necessary so that the
RO can rule on the propriety of a submission to the
appropriate authority for an extraschedular evaluation under
38 C.F.R. § 3.321(b)(1) (1997).
Finally, the RO has not considered whether the veteran is
entitled to a separate evaluation for the arthritis noted in
the left ring finger. See VAOPGCPREC 9-98 (August 14, 1998);
38 C.F.R. §§ 4.40, 4.45, 4.59 (1997). In order to make this
determination, there must be adequate evidence concerning
range of motion; there must also be a comment as to whether
there is any pain on motion.
Under the circumstances of this case, it is found that
additional assistance would be helpful, and this case will be
REMANDED to the RO for the following:
1. The veteran should be afforded a VA
orthopedic examination by a qualified
physician in order to fully assess the
current nature and degree of severity of
the veteran’s service-connected gunshot
wound residuals to the left hand. The
claims folder must be made available to
the examiner to review in conjunction
with the examination, and the examiner is
asked to indicate in the examination
report that she/he has reviewed the
claims folder. All indicated special
tests are to be performed and must
include range of motion testing. The
examiner should note the range of motion
of the left ring and little fingers. The
examiner must obtain active and passive
ranges of motion (in degrees), state if
there is any limitation of function and
describe it, and state the normal range
of motion. Whether there is any pain,
weakened movement, excess fatigability or
incoordination on movement should be
noted, and whether there is likely to be
additional range of motion loss due to
any of the following should be addressed:
(1) pain on use, including during flare-
ups; (2) weakened movement; (3) excess
fatigability; or (4) incoordination. The
examiner is asked to describe whether
pain significantly limits functional
ability during flare-ups or when the
joints of the fingers are used
repeatedly. Special attention should be
given to the presence or absence of pain,
stating at what point in the range of
motion pain occurs and at what point pain
prohibits further motion. The factors
upon which the opinions are based must be
set forth.
The examiner should provide a complete
rationale for all conclusions reached and
explain any loss of mobility reported in
the above examination.
2. The RO should re-evaluate the
veteran’s service-connected gunshot wound
residuals to the left hand in light of
the old and new criteria for rating
muscle injuries, effective July 3, 1997.
Notice should then be issued to the
veteran and his representative.
3. The RO should then rule on whether or
not submission of the veteran’s claims
file to the appropriate authority for
consideration of an extraschedular
evaluation for the gunshot wound
residuals to the left hand pursuant to
38 C.F.R. § 3.321(b)(1) is appropriate.
4. The RO should also determine whether
the appellant is entitled to a separate
evaluation for arthritis of the left ring
and little fingers in light of Diagnostic
Codes 5003 or 5010 and 38 C.F.R. § 4.40,
4.45, 4.59 (1997). See VAOPGCPREC 9-98
(August 14, 1998).
5. Following completion of the
foregoing, the RO must review the claims
folder and ensure that all of the
foregoing development actions have been
conducted and completed in full. If any
development is incomplete, including if
the requested examinations do not include
all tests reports, special studies or
opinions requested, appropriate
corrective action is to be implemented.
In the event that the veteran’s claim remains denied, in
whole or in part, he and his representative should be
provided an appropriate supplemental statement of the case,
and an opportunity to respond, and the case should be
returned to the Board for further appellate consideration if
otherwise in order.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
C. P. RUSSELL
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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